Constitutional and Political Developments in Nepal and the Challenges in the Implementation of the New Constitution

By Professor Surya P. Subedi, QC

It was in 1768, when King Prithivi Narayan Shah conquered the city of Kathmandu and its surrounding areas, the newly unified territory called ‘Nepal’ was formed. Post-unification, Nepal was predominately ruled by monarchy. Later, a local warrior caste called the Rana’s, usurped state power from the monarchy and took control of Nepal till 1951. Subsequently, power was restored to the monarchy under King Tribhuvan and his son and grandson continued his legacy effectively as executive monarchs until 1990 under an indigenous system of governance known as party less panchayat system. However, the people’s movement in 1989/90 led to the restoration of parliamentary system of government and a constitutional monarchy under a new Constitution.

The fall of the Berlin Wall, the end of the Cold War and the collapse of Communism taking place around the same time had a tremendous impact on the people of Nepal. The year 1990 was a colourful chapter in Nepal’s history. The 1990 Constitution was the cornerstone for the development of constitutionalism and for restoration of democratic values and norms. Most importantly it established Nepal as constitutional monarchy. Unfortunately, the aspirations of the political movement were not fulfilled.

Only a few years after the establishment of a multi-party democracy, a small ultra-leftist party, calling itself the Communist Party of Nepal (Maoist), began a brutal armed rebellion against the state in five districts of the mid-and far-west. These districts were underdeveloped and isolated from the capital. Inspired by a similar guerrilla war in Peru called the ‘Shining Path,’ the Maoist Party labelled its campaign ‘People’s War’. The Maoists began their campaign by strategically targeting state apparatus such as police stations and government offices.

Today, the factors behind the Maoist-led insurgency are better known. Back then however, the Maoist’s campaign bedevilled scholars and civil society. Over the decade-long insurgency, Nepal witnessed several violations and abuse by both the government security forces and the Maoists. Extra-judicial killings were recorded throughout the country. At the height of the insurgency, in June 2001, nine members of Nepal’s royal family, including the King and Queen, were killed in a tragic murder-suicide apparently committed by the Crown Prince. This episode was the beginning of the end of monarchy in Nepal. After the death of King Birendra and his immediate heirs, King Birendra’s younger brother Gyanendra Bir Bikram Shah became the new king. For the new king, his sudden ascension to the throne and the ongoing Maoist insurgency provided a political opportunity to consolidate power. He deployed the Royal Nepal Army against the Maoists, a step that his older brother had pointedly refused to do. The use of the national army against the Maoists turned the insurgency into a full-fledged civil war. He next used provision of the Constitution and declared a ‘state of emergency’ in Nepal to suspend all political rights and freedoms.

The absolutist and authoritarian rule of the King united the political parties. Facing a common political enemy in King Gyanendra, these political parties first formed an alliance among themselves (Seven-Party Alliance – SPA), and then united with the still-underground Maoist Party to launch another people’s movement against the King’s rule. The overwhelming response from the people in favour of the movement forced the King to surrender his powers to the leaders of the political parties. A Comprehensive Peace Accord was signed between the SPA and the Maoist, which brought the Maoist Party into the political mainstream.

The main objective of the agreement between the Maoists and other political parties was to hold fresh elections to elect a constituent assembly to write a permanent constitution for the country. The purpose of a new permanent constitution was aimed at restructuring the system of governance within the country and allowing equal access to power for people of all traditionally marginalised ethnic, religious and racial groups in this highly stratified traditional society, and to eliminate discrimination against them. Thus, when the election for the constituent assembly took place in April 2008 and the monarchy was abolished a month later by the Assembly, Nepal had completed one of the important phases of political transition.

However, due to the lack of consensus amongst the major political parties on some key issues such as the criteria for the new federal structure of the country and the form of governance, the Constituent Assembly was not able to agree on a new constitution. After four years of its existence the Assembly was dissolved in May 2012, as the Supreme Court of the country ruled that the Assembly could not go on indefinitely in a state of political stalemate since it had initially been elected with a two-year mandate in 2008. A second constituent assembly election was conducted in 2013. Again, the drafting process dragged on for almost two years. But the massive April 2015 earthquake pressured the political parties to draft and pass a constitution, which was promulgated in September 2015. It established Nepal as a republic, made the country secular, and adopted a federal structure. Even though the constitution was passed by 90 percent of votes in Parliament, a few political parties walked out of the process and protested the constitution for not being inclusive enough or not embracing a fully-fledged federalism.

The task ahead in implement ting the new constitution look daunting. The Madhesh based political parties and some ethnic or janajati groups are demanding a major amendment to the constitution to make the federal structure more meaningful and more autonomous. However, the country is in the process of implementing the new constitution and a first round of local elections under the new constitution have taken place. The second round of local elections, then state or provincial level elections and finally national elections for parliament are scheduled to take place within this year after which the country will have completed the political process that began with the abolition of monarchy and declaration of Nepal as a federal democratic republic. Going by the way the first round of local elections that took place in May 2017, democracy seems to be maturing in Nepal.

If the country achieves political stability it is poised to take off in terms of its economic development. There is now a ray of hope for the people in this ancient country stricken by one after another man-made and nature-made tragedy in its recent history. The system of governance is now more inclusive and people are free to speak their mind and exercise and assert their rights. A kind of social renaissance seems to be underway in the country. But the road ahead in implementing the new constitution is not going to be smooth. It will require statesmanship on the part of the political leaders, accommodation of competing interests and tolerance and above all a faith in the rule of law and respect for human rights.

Traditionally, a new constitution is needed in a country following a major political upheaval in the country whether it is after gaining independence from colonial rule (e.g.in India) or a successful revolution (e.g. the Bolshevik revolution in Russia) or break up of a federal state resulting in the creation of many independent states (e.g. the former USSR or Yugoslavia), or a major change of the political system (e.g. South Africa after apartheid). But Nepal’s Maoist insurgency was not a successful revolution by any measure. Nevertheless, the abolition of the monarchy was a major event and the country needed a new constitution to embrace a republican system of government and accommodate some of the provisions in the Comprehensive Peace Agreement concluded with the Maoists.

The challenges ahead for Nepal is to institutionalise the changes that have taken place in the political landscape of the country and make them work in the interests of the people belonging to all sections of the population. The challenges include (1) ushering the country towards a new era of economic development through political stability (2) ensuring inclusivity in all aspects of governance (3) managing identity politics (4) addressing the concerns of the Madheshi political parties (5) decentralising power and (6) addressing the issues of transitional justice. Since the new constitution opted for a parliamentary system of governance, observers wonder whether it will bring about political stability given the diversity within Nepal in terms of ethnicity, race, religion, caste and creed of all kinds. Critics have also pointed out the weak or inadequate provisions in the constitution on transitional justice.

However, there are many positive aspects of political and constitutional changes in the country. To begin with, Nepal is one of those rare countries which abolished the monarchy in a peaceful manner. King Gyanendra left the royal palace in a dignified manner after holding a press conference to announce his departure from the palace. Second, Nepal’s peace process has been an indigenous one in which the internal political actors took ownership of the process. This has not been the case in many countries around the globe and Cambodia is an example where the UN needed a heavy involvement to manage the peace process.

The new constitution was the result of a compromise between the major political parties. It was written and adopted by a two-thirds majority of the constituent assembly elected by the people. It is based on democratic principles, the rule of law, respect for human rights, judicial independence, separation of power and the checks and balances between the major organs of the state (i.e. the judiciary, the executive and the legislature). It includes provisions for inclusivity and proportional or equitable representation in governance of the country at all levels and access to the resources and services offered by the State. It has one of the most progressive provisions in terms of women’s participation in power and the representation of the traditionally marginalised groups such as the Dalits of Nepal.

In conclusion, the political and constitutional progress in Nepal thus far is looking encouraging. Nepal has a great deal to offer to the outside world. A well-managed tourism sector alone can generate a great deal of revenue needed to support the people. Development of water resources for the benefit not only of Nepal but also for the population of India and Bangladesh is a real possibility. Time and again, the people of Nepal have demonstrated how resilient they are and they have demonstrated their maturity in exercising their democratic rights. In sum, Nepal has many ingredients already in place that are needed to develop its economy. If the new constitution enables the people to elect to power relatively clean, efficient and democratic government led by visionary people that can provide political stability, it should not take long for Nepal to gain the status of a middle-income country. If all the political actors adopt a liberated mindset and embrace tolerance, plurality and accommodate competing interests in the political structure and process in the country, Nepal stands to transform herself very quickly as a forward-looking nation aiming to achieve both sustainable and equitable economic development underpinned by the values of democracy and the rule of law.